“Throughout history, it has been the inaction of those who could have acted; the indifference of those who should have known better; the silence of the voice of justice when it mattered most; that has made it possible for evil to triumph.”
Haile Selassie

Monday, October 28, 2013

Indiana Attorney General Refuses to Defend the Constitutionality of Expungement Law

Tim Evans of the Indianapolis Star has a lengthy piece about the challenge by the Morgan County Prosecutor Steven Sonnega to the constitutionality of Indiana's expungement statute:

Morgan County Prosecutor
Steven Sonnega

Sonnega’s concern, which prompted him to challenge the
constitutionality of the law, centers on the legislature’s use of
“shall,” rather than “may,” in describing how a judge can rule on an
expungement request. In legal lingo, “shall” is a must-do directive,
while “may” denotes some degree of judicial discretion.

The Legislature over-stepped its Constitutional authority,” the prosecutor
wrote in a court filing this month. “when it used the term ‘shall’ as
opposed to ‘may.’”

Something more than an esoteric squabble over the nuances of legal terms is
driving Sonnega’s action. His underlying concern is for the victims in
cases in which the people who did the crime are seeking an expungement.
The law, which took effect July 1, fails to take into account victims’
rights and interests, Sonnega said. That failure, he said, violates the
Indiana Constitution’s requirement that “crime victims be treated with
fairness, dignity, and respect throughout the criminal justice system.”

The article proceeds to discuss the constitutionality as well as the merits of the statute. What I found most interesting though was the discussion of the duties of the Attorney General at the end of the article:

So far, the attorney general, who typically defends state laws, has
stayed out of the case. An appeal would set up an interesting scenario
because the attorney general also represents prosecutors in cases that
go to the Indiana Court of Appeals or state Supreme Court.

Schumm said that is one of the oddest things about the case — basically pitting one arm of the state against another.

Bryan Corbin, a spokesman for the attorney general, said the office would
step in to defend the law if Hanson rules in favor of the prosecutor.

It is the duty of the Office of the Attorney General to defend a statute
passed by the Legislature if it is found unconstitutional by a trial
court,” Attorney General Greg Zoeller said in a statement to The Star.

While we respect the views of county prosecutors, we believe that changes to
statutes should be brought back before legislators to resolve policy
questions.”

Zoeller is tossing out a red herring. Sonnega's challenge is not that the law is bad policy, but rather that it is unconstitutional. In his statement, Corbin appears to suggest that the Attorney General's duty to defend the constitutionality of the law only kicks in at the appellate level. That is flat-out wrong. The Attorney General has a duty to defend the constitutionality of laws passed by our General Assembly from the outset. (Pursuant to this duty, state law obligates litigants including a constitutional challenge in their complaints to notify the Attorney General so the AG can defend enter at the trial level to defend the constitutionality of the law.) It is important that the AG begin the defense of the constitutionality of a law at the trial level as that is where the evidentiary record is set, which record is often critical on appeal. Perhaps more importantly, legal arguments could be waived on appeal if not made at trial. Much of the appellate strategy is set by what happens at trial.

Attorney General
Greg Zoeller

The procedural posture of this case is bizarre. You have Prosecutor Sonnega, as an attorney representing the State of Indiana, arguing against the State of Indiana by asking that the law be declared unconstitutional. On the other side, you have only the criminal defendant standing up for the constitutionality of the state law. Meanwhile you have the State's Attorney General, who is obligated to defend that state law, sitting on the sidelines. What should have happened in this case is that the court allow a victim to intervene to challenge the law, while the Attorney General comes in to defend the law. Most certainly a prosecutor, a state official, should not be allowed, in his official role, to challenge the constitutionality of state criminal statutes.

This unfortunately is yet another time that the Attorney General has refused to defend in court a law passed by the Indiana General Assembly. This also happened with the state's immigration law. If AG Zoeller is uncomfortable with defending a state law in court, then he should use the "opt out" provision in state law that allows him to appoint outside counsel to defend the challenged state law. While that was an option used by previous Attorney Generals, Zoeller refuses to do so, claiming an absolute right to not defend state laws he does not agree with in court.

It should be noted that Zoeller's position with respect to the expungement law and immigration is inconsistent to a statement he made with respect to his duty to defend Indiana's law against same sex marriage:

...But
my duty as Indiana Attorney General is to represent our state and to
uphold and defend our state statutes when challenged, not to represent
my personal views or what polls might suggest is popular opinion.

The
obligation of attorneys general to defend existing statutes has been
brought into question in these two Supreme Court cases, in that the U.S.
attorney general and the California state attorney general are not
defending their own federal and state laws that are being directly
challenged. To make things more confusing to the public, the President,
who has stated that his personal views have evolved over the past few
years, has decided to have the Justice Department’s U.S. Solicitor
General argue against upholding DOMA at the Supreme Court. He
has expressed through his Justice Department’s legal filings his own
opinion that DOMA is unconstitutional.

I
view my duty differently. As Indiana Attorney General, I don’t get to
define marriage or vote on legislation. Instead, as state government’s
lawyer I am obligated to defend our state’s laws passed by the people’s
elected representatives in the Indiana Legislature. Our state’s
legislative branch has the policy-making authority to license marriage
within our state’s borders using the traditional marriage definition,
and I will continue to defend their legal authority in court as
necessary.
Rather than presuming to decide the constitutionality of our laws by
leaving them undefended, I will uphold my responsibility to defend them
and instead let the judicial branch decide if they are constitutional,
as is its role.

Attorney Zoeller will aggressively defend the constitutionality of Indiana law in court...unless it is a law he doesn't like.

About Me

I have been an attorney since the Fall of 1987. I have worked in every branch of government, including a stint as a Deputy Attorney General, a clerk for a judge on the Indiana Court of Appeals, and I have worked three sessions at the Indiana State Senate.
During my time as a lawyer, I have worked not only in various government positions, but also in private practice as a trial attorney handing an assortment of mostly civil cases.
I have also been politically active and run this blog in an effort to add my voice to those calling for reform.